That call — which prosecutors say Republican former Gov. Robert L. Ehrlich Jr.'s campaign used in an attempt to suppress black votes — is the "primary evidence in the case," said Maryland State Prosecutor Emmet C. Davitt during opening statements Tuesday.
Davitt's trial strategy is nearly identical to the one he used last year to convict Ehrlich's campaign manager, Paul Schurick, of four charges. Davitt dismissed as baseless allegations from Henson's attorney, Edward Smith Jr., that Henson was being prosecuted for political reasons.
"Don't let anyone tell you this is about politics," Davitt told the jury, which is made up of five black women, five black men and two white men.
For his part, Smith offered several defenses to the jury. He argued that Henson's call was actually meant to encourage black votes through reverse psychology — an argument also employed by Schurick's defense team, but rejected by the previous jury.
Smith also sought to separate Henson's culpability as a consultant from that of the campaign.
"He gives advice," Smith said of Henson. "He's not a member of the campaign committee. They are responsible for the things they do."
Finally, Smith attempted to cast Henson as the victim in the case — the target of the "big government" Democratic Party establishment because, after working for many Democratic campaigns, he switched parties to help Ehrlich. Smith said he would show how Democrats at the state and federal level have attempted to punish Henson since the robocall went out.
The prosecution is "what they do to people who step out of line," he said.
The Ehrlich campaign paid Henson $16,000 a month — for a total of $112,000 — and promised a bonus of $30,000 should Ehrlich win. The robocall in question implied that O'Malley had already won his race against Ehrlich, even though the polls were still open.
As their first witnesses, prosecutors called two residents who received the call and testified that they viewed it as an attempt to deceive because it went out before the polls were closed.
The trial is expected to last eight days.
Schurick was convicted in December. He was sentenced to 30 days of home detention, 500 hours of community service and four years of probation.